The
Solicitor-General: I want to make it very clear that those
three are synonyms. It is not about one including the two; it is about
all three meaning the
same.
Mr.
Harper: I listened very carefully to the Minister’s
comments and to the intervention of the hon. Member for Oxford, West
and Abingdon. It is perfectly sensible for the explanatory notes to
explain the legal terminology in plain English. I do not know how many
Committee members have ploughed through both parts of the Bill, but, to
be perfectly frank, the words “crisp” and
“contemporary” did not leap out at me as I went through
the 200 or so clauses. It is a perfectly good Bill, but crisp and
contemporary it is not. It uses much language, such as
“protected characteristic”, that one does not generally
hear down the pub. Unless, of course, the Solicitor-General’s
local pubs are different from those in the Forest of
Dean.
The
Solicitor-General: Probably
not.
Mr.
Harper: We have some wonderful pubs in the Forest
of Dean, and the hon. and learned Lady is always welcome to come and
sample them to boost our tourism industry. [Interruption.] I
acknowledge her reciprocal invitation. I am not convinced by the
Minister’s argument, however, which I do not think was a very
good one, so I would like to test the Committee’s
opinion. Question
put, That the amendment be
made. The
Committee divided: Ayes 8, Noes
10.
Division
No.
2] Foster,
Michael Jabez (Hastings and
Rye)Question
accordingly negatived.
Lynne
Featherstone: I beg to move amendment 130, in
clause 13, page 9, line 5, leave
out ‘a’ and insert ‘one or more than
one’. An amendment to permit claims of
direct discrimination and harassment on multiple form of
discrimination.
The
Chairman: With this it will be convenient to discuss
amendment 131, in
clause 24, page 17, line 18, leave
out ‘a’ and insert ‘one or more than
one’. An amendment to permit claims of
direct discrimination and harassment on multiple form of
discrimination.
Lynne
Featherstone: The amendment would permit a claim of direct
discrimination and harassment for multiple forms of discrimination. I
know that the Government are consulting on the matter but,
interestingly, the consultation document prompts this question: on what
principle of justice or fairness should new legislation aimed at
fairness deliberately exclude protection against discrimination based
on a combination of two or more characteristics, discrimination against
which are individually prohibited, because it would be burdensome to
business? The key is that justice is not about whether business finds
something burdensome to act equitably. The purpose of the measure must
be justice.
The business
community has concerns about the increase in litigation, because there
could be multiple bites of the discrimination cherry. It is concerned
that that would increase settlement costs and that it would be cheaper
to settle than to go to court. Under the Bill, cases of direct
discrimination and harassment on multiple forms of discrimination are
not outlawed, but we think they ought to be, and the Government are
consulting on the issue. However, all organisations seem to think that
such a measure is necessary, so I do not understand the need to consult
again.
My reading of
the situation is that the Government believe that combining two
protective characteristics would be adequate, because it would cover
most claims, but that might result in permitting combinations of more
protective characteristics. In response to the “Discrimination
Law Review” consultation, public concern that the current law
does not adequately protect those who experience multiple
discrimination was identified. I am sure the Minister can think of many
such
examples. If
we amended the wording from “a” to
“one or more
than
one”, a
claimant would be able to bring the appropriate claim for
discrimination on more than one ground, and on any number of grounds
that were deemed appropriate. We need to give voice to that now,
because we do not believe that we need to wait for consultation. There
has already been two years’ consultation on
this.
Mr.
Harper: I shall be very brief. Having listened to the
evidence, I believe that the hon. Lady is slightly wrong in the way in
which she characterises what the Government have done. I read their
written statement and their consultation document. They acknowledged
that a great deal of the feedback to the “Discrimination Law
Review” said that there should be a multiple discrimination
provision, as the hon. Lady says. That is why they made a proposal
enabling claims that combine two protected characteristics in the
consultation document. I read both the written statement and the
discussion
document that the Government published in April and thought that they
made a great deal of sense. We will obviously look carefully at the
specific legislative proposals that the Government introduce.
During the
evidence-taking session, there was a discussion about whether combining
two characteristics made sense, or whether more were needed. There was
general agreement that it should be possible to combine two, but there
was not much evidence of cases where two would not enable the
protection. There did not seem to be much evidence to support having
more than two characteristics, given the complexity involved and the
benefits that would be derived.
Given the
fact that the law should be based on dealing with real, identified
problems, the proposal to bring in multiple discrimination on two
protected characteristics seems to be the right one. If, in future
cases, there are many situations involving more grounds, which the
Government’s proposal would not solve, the matter could be
looked at again. From the evidence that we heard in Committee, the
Government’s approach seems sensible. The hon. Lady’s
amendment would insert “more than one”, implying that all
the protected characteristics could be brought together, and
regrettably, we are not able to support it.
Lynne
Featherstone: I thank the hon. Gentleman for those
remarks. This is a question of striking the right balance. I believe
that the law would not become more complex because that complexity is
already there as a consequence of the existence of the strands.
Intersectional cases would become less complex, because the law would
sit more naturally and suit the facts. Again, the fact that something
is more complex or burdensome should not be the guiding line as to how
many strands, protective characteristics or multiple discriminations
are allowable. However, I take the hon. Gentleman’s
point.
Mr.
Harper: That is important, because the Bill is not just
about what the law says, but about what happens in reality. Part of the
benefit of bringing different pieces of discrimination law together in
a more straightforward Bill, is that protection will not be offered
only by the law. The reality on the ground will be that all those
organisations that have to behave in accordance with the
law—such as those providing goods or services, or
employers—will find it easy to understand. The problem with
making something complex, particularly if it is disproportionate to the
wrong that we are trying to solve, is that in making it more complex,
it becomes more difficult. There might be a purer basis in law, which
we would all be happy with, but in practice, it might more difficult to
deliver the rights and protections that are so important for the people
we are trying to look after.
Lynne
Featherstone: I suspect that the Government are not going
to accept the amendment, and I will withdraw it after the Minister has
responded. We need to work on that balance.
[Interruption.] Sorry?
The
Solicitor-General: Why not withdraw it
now?
Lynne
Featherstone: I would like to hear what the Minister has
to say in response.
The
Solicitor-General: The amendment would have the effect of
allowing claims of direct discrimination and harassment to combine in
an unlimited number of any or all protected characteristics. The great
mathematicians advising me have worked out that covering all the
possible combinations would give 511 possible combinations of action,
which not surprisingly, is rather a worry for business. It would be
highly complex, most people would find it excessively burdensome, and
it would leave individuals wondering where and how on earth they could
exercise their rights in the face of such a lot of possible
combinations. We
recently published a document. There was a good deal of discussion in
the earlier review, as the hon. Member for Forest of Dean has said, and
the intention of the new document, “Equality Bill: Assessing the
impact of a multiple discrimination provision” was exactly as
expressed in its title. A clause in the document limits it to two
grounds. The point was to ask a specific question of a particular
business and other interested parties about what the impact of the
clause on that limited number of grounds would be, so as to provide a
some clear understanding about the l scope of the
measure.
4.45
pm In
short, the hon. Lady’s proposal would be unduly complex and
excessively burdensome and, since she has let the cat out of the bag by
saying that she is going to withdraw it, I shall not add any more
detail. However, our discussion document closed for responses last
Friday. We are looking at the feedback we have received and, once we
have done so, we will make a decision about whether protection from
multiple discrimination, as set out in our document, can be effective,
workable and proportionate. If it can, we will introduce
it.
Mr.
Harper: On timing, will the Minister confirm whether it is
subject to the question of how long it takes to go through those
responses? Do the Government intend to table an amendment to the Bill
on Report in the Commons, or wait until it goes to the other place? On
a procedural point, I think it would be better to allow the elected
House to consider it first, if that is possible within the
timing.
The
Solicitor-General: Yes, it is our ambition to do it
here—ideally while the Committee is still sitting. I am not sure
whether we will manage that or not, but we want to do it here if it is
to be
done.
Lynne
Featherstone: I listened carefully to the Minister and
thank her for her response. Regardless of whether or not I withdraw the
amendment, it is important to have her thoughts on the matter on the
record. It is a matter of judgment and I accept the Minister’s
view that the best way forward is to look at the combination of two of
the strands. I also welcome the fact that the Commons, rather than the
Lords, will be able to scrutinise the measure so, for now, I beg to ask
leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
John
Penrose (Weston-super-Mare) (Con): I beg to move amendment
194, in
clause 13, page 9, line 6, at
end insert— ‘(1A)
Discrimination does not include marketing or promoting activities
targeted at a particular group of people whether or not they share a
protected characteristic.’.
It is a
pleasure to have my first opportunity to make a contribution under your
chairwomanship, Lady
Winterton.
The
Chairman:
Chairmanship.
John
Penrose: I stand corrected. Amendment 194 states that
discrimination does not include marketing or promoting activities
targeted at a particular group of people, whether or not they share a
protected characteristic. It is tabled primarily to elicit some
reassurance from the Minister that routine, perfectly normal and
perfectly lawful business activities will remain as such.
I am sure the
Minister is well aware that it is standard business practice to segment
markets, and to target particular groups on the basis of sound business
principles. I hope that she will reassure us that that can continue and
that there will be no question, in the future, of subjecting
businesses’ marketing plans to rigorous legal scrutiny. They
have not required that scrutiny in the past.
There are two
issues: one is market targeting, the other is limiting access to a
product or service. The second one is different and is deliberately not
part of the amendment—that is something for separate discussion
later. There are, however, many companies whose business models could
be cast into doubt if we do not clarify this proposal. There could be
all sorts of dangerous and worrying implications if we do not nail this
down.
Mr.
Boswell: Does my hon. Friend agree that one of the
difficulties is that any discrimination likely to be alleged will
probably be indirect? For instance, a marketing programme might not
necessarily be expressed as only for the over-70s, or whatever, but in
practice it might well add up to that as a result of careful market
segmentation. People would then say, “Ah, this is
discrimination.”
John
Penrose: My hon. Friend has summed it up neatly—we
tabled the amendment for that reason, and to give the Minister a chance
to allay any fears among investors, management and staff in many
companies up and down the country. There are many examples. We have
heard evidence and submissions from companies such as Saga, which
specialises in marketing to, and providing holidays for, people above a
certain age. Club 18-30 self-evidently targets its products at the
other age range, and Sheilas’ Wheels markets insurance to women
drivers, as well as a series of other people. Those companies have
particular market aims and are targeting their advertising at certain
segments of the market. I am not sure, but it is entirely possible
there are holiday companies which market their products and aim their
promotional activities at Muslims wishing to go on the Hajj. Those
companies would be legitimate and we would not want to stop them. In my
constituency of Weston-super-Mare, there is a hotel which specialises
in holidays and respite for disabled people and their carers. Clearly,
everybody would want that to be perfectly legitimate and allowable in
future.
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